Dedicated to the conservation and restoration of nature, The Larch Company is a non-membership for-profit organization that represents species that cannot talk and humans not yet born. A deciduous conifer, the western larch has a contrary nature.

There is an even chance that 0.4 billion barrels of oil and 2.28 trillion cubic feet of natural gas that are technically exploitable might be discovered under the Outer Continental Shelf offshore Oregon and Washington. At 2017 rates of consumption, this amount of oil and gas would fuel the United States for twenty and thirty-one days respectively.

As part of the tax bill recently signed into law by President Trump, at the behest Senator Lisa Murkowski (R-AK), Congress opened up Arctic National Wildlife Refuge for oil drilling. The next battle over drilling the in the refuge is about to commence. For the caribou and nature, each battle must be won or at least a draw. For the forces of darkness, they must only win once.

The pending tax cut legislation in Congress would open up the Arctic National Wildlife Refuge (ANWR) in Alaska to oil exploitation. What does oil drilling that harasses caribou have to do with taxes? It’s a long and tangled tale,

The originations of 25 of our 59 national parks, totaling 39.6 million acres, were first seeded by the establishment of a presidentially proclaimed national monument. Fourteen of these monumental 25 were established from more than one national monument proclamation, in that were expanded by later presidents.

The Trump administration is moving ahead with its intention to review and rescind national monument designations for some public lands. Now a leaked memorandum from Secretary of the Interior Ryan Zinke shows that he will be pointing to unproclamations of portions of national monuments by previous presidents as precedent.... None of the unproclamations were ever litigated, so there has never been a judicial determination of whether those reputable legal scholars are indeed correct. Now, however, if President Trump acts on Secretary Zinke’s recommendations, the time will come for such a test.

Back in the day, an Act of Congress, signed into law by President Theodore Roosevelt on June 8, 1906, soon after became commonly known as the “National Monument Act.” The more recently used name of the “Antiquities Act of 1906” must now be changed back to “National Monument Act of 1906.”

Marine protected areas (MPAs) in the United States exist to preserve our nation’s marine resources for this and future generations. About 26 percent of US marine waters are protected in some kind of MPA, defined ... as “any area of the marine environment that has been reserved by federal, state, territorial, tribal, or local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein.” A few MPAs known as marine reserves or no-take MPAs (amounting to about 3 percent of US waters) do not allow hunting, fishing, or collecting. The purpose of these no-take MPAs, which include marine national monuments, is to sustain fisheries and allow ecosystems to recover from environmental stressors.

The United Nations recently announced twenty-three additions to the World Network of Biosphere Reserves (WNBR). At the same council meeting where those additions were made, a request by the United States to remove seventeen was also approved. The Trump administration has trumpeted its general disdain for the United Nations, but this withdrawal was done without fanfare and so received very little press coverage.

Federal conservation systems are an unqualified social good and generally provide elevated protection and better management to important federal public lands and to resources and areas of high national significance. All existing federal conservation systems could be improved, and none should be weakened or discarded. Those that haven’t yet been codified by Congress need to be.

Public comments are being taken on the regulations.gov website until May 26, 2017, for Bears Ears National Monument and until July 10, 2017, for all the other national moments on the Trump hit list. Register your opinion by clicking the “Comment Now!” button. You have my permission to be frank, blunt, terse, profane, and/or eloquent.

Birds should be saved for utilitarian reasons; and, moreover, they should be saved because of reasons unconnected with dollars and cents. A grove of giant redwoods or sequoias should be kept just as we keep a great and beautiful cathedral. The extermination of the passenger-pigeon meant that mankind was just so much poorer. . . . And to lose the chance to see frigate-birds soaring in circles above the storm, or a file of pelicans winging their way homeward across the crimson afterglow of the sunset, or a myriad of terns flashing in the bright light of midday as they hover in a shifting maze above the beach-why, the loss is like the loss of a gallery of the masterpieces of the artists of old time.

This least outdoors-loving American president makes me appreciate the most outdoors-loving president, Theodore Roosevelt. TR spent many a night outside of a bed under the open stars, including three nights in the Sierra with John Muir. Before TR left office in 1909, he had established, sometimes with Congress and sometimes without: 51 bird reservation, four national game reserves, five national parks, 18 national monuments, and 150 national forests. I fear the losses to be toted up when Trump leaves office.

President Trump signed an executive order on April 26, 2017, that directs Secretary of the Interior Ryan Zinke to review sixty-two of the last three presidents’ national monument proclamations, dating back to 1996. The review will result in a final report in four months that “shall include recommendations, Presidential actions, legislative proposals, or other actions consistent with law.”

The administration is interested in either totally abolishing, reducing in size, and/or weakening the protections for national monuments. Those prerogatives belong to Congress. If Trump tries, he’ll get a multitude of tweets saying, “See you in court!”

Hole in the Ground is just a run-of-the-mill extraordinary piece public land on the Deschutes National Forest in Lake County Oregon, where many times over many decades the author has camped either in solitude or with lovers and/or friends on the rim and enjoyed the, scenery, solitude and stars.

The 115th (2017–2018) Congress poses an existential threat to America’s public lands, which comprise 609 million acres across our fifty states. As Republicans have the majority in both the Senate and the House of Representatives, anti-public-land Republicans are well positioned to advance a wide range of truly horrible legislation....

The support for federal public lands to remain federal public lands and to be managed responsibly for the benefit of this and future generations is broad and deep, while opposition to federal public lands is narrow and shallow. Yet, as has been shown by a plethora of evil legislation, the only thing necessary for bad legislation to pass is for good people not to object.

The 2016 election of Donald Trump in the Electoral College was a troubling development on many fronts, including that of conserving certain federal public lands as national monuments for this and future generations. The Trump administration is considering entreaties from some aggrieved Republican U.S. senators and members of Congress—as well as some shortsighted local economic interests—to either abolish, reduce, or weaken national monuments proclaimed by previous presidents. They are concentrating on those national monument proclamations by all presidents whose last names start with the letter O.

Proclamations: Exercising Congressionally Delegated Authority

President Obama’s use of the congressionally delegated authority to proclaim national monuments was both vast and visionary. Since President Theodore Roosevelt signed the Antiquities Act of 1906, all U.S. presidents except for Republicans Nixon, G.H.W. Bush, and Reagan have utilized the authority by proclaiming national monuments. Some presidents have proclaimed a lot, some just a few, and some none at all.

The Antiquities Act is as eloquent and visionary as it is brief. Here are the two most important provisions:

(a) Presidential Declaration.—

The President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.

(b) Reservation of Land.—

The President may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.

It is important to note that when a president proclaims a national monument, the president is not exercising constitutional authority as president but rather exercising a constitutional authority granted to Congress in the “property clause” (Article IV, Sec. 3, Clause 2) that Congress has delegated to the president. Congressional power over federal public lands is a matter of very settled law, but that doesn’t mean a few whackos don’t reject it.

National monuments are “proclamations,” not “executive orders.” The president issues executive orders under the faithful execution clause of the Constitution (in Article II, Section 3). A president may expand, revoke, or modify a previous executive order. An executive order and a presidential proclamation under the Antiquities Act are absolutely not one and the same.

Mistaken Ideas About Undoing Proclamations

National monument opponents believe a president can undo a national monument proclamation of a predecessor. They are wrong. Let’s examine three potential (il)legal lines of attack: abolition, reduction, and weakening.

Abolition

The command of the Antiquities Act’s paragraph (a) is clear: the president may declare national monuments. There is no authority to un-declare them. If Congress had meant for a later president to overrule a previous president, it would has said so. Congress did not.

No president has ever abolished a prior president’s national monument. Congress has, but Congress can.

Reduction

Paragraph (b) requires that a national monument be the “smallest area compatible with the proper care and management of the objects to be protected.” Another gambit—which national monument opponents believe may have a better chance of withstanding judicial scrutiny—is for a later president to officially proclaim that a previous president got it wrong in the original proclamation and secured too much area as a national monument. Another argument might be that factual circumstances have changed, so a smaller area will still protect the objects proclaimed for protection.

Some presidents have by subsequent proclamation reduced the area within a national monument. In some cases, the reduction was accompanied by an expansion elsewhere. While this is precedent in practice, it is not precedent in court—because no court has ever been asked to rule on the matter.

Again, if Congress had meant for a later president to overrule a previous president, it would have said so. Congress did not.

Weakening

The final gambit may be gutting the protections afforded in the national monument proclamation. Modern national monument proclamations have tended to be very specific and directive as to how the administering agency is to manage the monument (what is allowed and not allowed, and that kind of thing). Some presidents have, by subsequent proclamation, changed management requirements.

While this is precedent in practice, it is not precedent in law—because no court has ever been asked. Again, if Congress had meant for a later president to overrule a previous president, it would have said so. Congress did not.

If President Trump tries to abolish, reduce, or weaken a national monument proclaimed by a predecessor, he will be challenged in federal court and we shall all see if the Antiquities Act means what it says.

For those who want to go deeper on national monuments and law and the power of a subsequent president to cause mischief, I commend to you:

Two lawsuits have been filed to overturn the 47,624-acre expansion of the Cascade-Siskiyou National Monument (CSNM) in Oregon by President Obama in 2016. The original CSNM was proclaimed by President Clinton in 2000 (~52,000 acres since enlarged by 13,359 acres due to the acquisition of generally undeveloped inholdings from willing sellers). The first case was filed in the U.S. District Court for the District of Columbia by the Association of Oregon and California Counties (“Addicted Counties”), while the second case was filed in the United States District Court for Oregon (Medford) by a couple of timber companies (“Big Timber”).

Addicted Counties believe that their share of timber receipts from the sale of federal timber within the monument expansion to Big Timber will decline. Both Addicted Counties and Big Timber allege that the Antiquities Act of 1906 is trumped (no pun intended; it used to be such a fine word) by the Oregon and California Lands Act of 1937. The latter statute generally prescribes the management of more than two million acres of federal forestland in western Oregon. Big Timber and Addicted Counties believe the O&C Act is a timber uber alles statute, though they’ve yet to find a federal court judge who agrees with them. This is Big Timber’s and Addicted Counties’ latest of several (so far unsuccessful) attempts to have a court declare that the O&C Act of 1937 is indeed a combination of the 11th Commandment and the 28th Amendment. The O&C Act is, in fact, Congress’s first attempt to write a multiple use statute, and along with statutes enacted before and after 1937 (such as the Endangered Species Act and the Clean Water Act) guide the management of the O&C lands. Both Earthjustice and the Western Environmental Law Center have intervened in the two cases on behalf of several conservation organizations (woe unto Big Timber and Addicted Counties).

To get down and dirty on this obscure statute that applies only to certain federal public lands in western Oregon, I commend to you:

During this Trumpian Quadrennium, with a Congress hostile to conservation, the chances of expanding the National Wildlife Refuge System (NWRS) approach zero. Yet the need to double the size of the system has never been greater, so now is the time to start.

Finally on March 30, 1891, Congress enacted the Forest Reserve Act, which allowed the president to proclaim national forests from lands in the federal public domain. President Benjamin Harrison (1889–1893), who signed the legislation, eventually proclaimed forest reserves totaling 13 million acres, including the nation’s first: Yellowstone Park Timber Land Reserve (today, mostly the Shoshone National Forest in Wyoming).

President Grover Cleveland (1893–1897) created more forest reserves totaling 25.8 million gross acres (not all within the reserve boundary was federal public domain). President William McKinley (1897–1901) followed by proclaiming 7 million acres. President Theodore Roosevelt (1901–1909) established an additional 150 million acres of what would become known as national forests....

Thanks, Benny, Grover, and, most especially, Teddy!

However, more forest lands should be included in the National Forest System. This includes 2.6-million acres of generally forested Bureau of Land Management holdings in western Oregon. It includes other generally-forested BLM lands in eastern Oregon, Montana, Alaska and elsewhere. It includes large amounts of private industrial and small private timberlands that could be acquired from willing sellers.

A ~1,000-word weekly exposition on some aspect of federal or state public lands in the United States. Some blog posts goes rather deep and serve as a useful (I hope) backgrounders on particular public land areas, matters or issues. Other weeks, you’ll find a topical piece addressing a public lands controversy of the moment. This blog not only defends, but also extols, public lands.

Andy Kerr of The Larch Company (www.andykerr.net) splits his time between Ashland, OR and Washington, DC. He has been significantly involved in the enactment of more than 25 pieces of federal and state legislation and in copious litigation pertaining to public lands. Dedicated to the conservation and restoration of nature, The Larch Company is a non-membership for-profit organization that represents species that cannot talk and humans not yet born. A deciduous conifer, the western larch has a contrary nature.